Simple promises

546. Its nature. 1. Promise signifies a contract by which someone gratuitously obligates himself toward another to doing or omitting something.

a. Promise must first be distinguished from purpose: for one proposing does not intend to assume some new obligation, but one promising intends to bind himself by a new obligation.

b. He who promises something is called the promiser, but he to whom something is promised is called the promisee.

c. Here there is question of a promise which is made to man, not of a promise which is made to God. But a promise which is made to man is either simple or mutual. Promise, whether simple or mutual, of entering a contract is accustomed to precede onerous contracts, especially real contracts, for example, a promise of giving a loan for consumption, of buying and selling a house, of entering marriage. In this place there is speech of simple promise.

2. In order that a promise have force, the conditions are required which are necessary for the value of a gratuitous contract: a. that the will of obligating oneself be present, which he who seriously wishes to promise is considered to have implicitly, even if he does not advert to the obligation; b. that the promise be externally manifested and accepted; wherefore the promiser before acceptance can always still revoke the promise made by natural law.

547. Its obligation. 1. It depends on the intention of the promiser whether the promise obliges from fidelity or from justice.

a. If the promiser intends to obligate himself only from fidelity, he is indeed bound in conscience to fulfill the promise, but only under light obligation, even in a thing of great moment, because fidelity of itself does not oblige under grave obligation; but per accidens, by reason of grave damage which is foreseen to arise for the promisee, it can oblige even under grave obligation.

b. If the promiser intends to obligate himself from justice, he is bound to fulfill the obligation under grave obligation in grave matter. Yet for constituting a grave sin matter four times greater is required than in theft, because not to give one's own thing promised to another is much less opposed to justice than to take away or retain another's thing.¹

c. If doubt exists concerning the obligation of the promise, one must stand for the minimum, because an obligation about which there is no certainty must not be imposed. Hence if someone makes a promise in a grave matter, not attending whether he obligates himself under grave or under light obligation, he must be considered obligated only under light obligation.

d. Obligatory promises ordinarily do not oblige from justice, because those promising rarely have the intention of obligating themselves so strictly. But he is considered to obligate himself from justice (and in the external forum is presumed so to obligate himself) who promises with some solemnity, for example, under oath, or adds a written note to the promise, or makes the promise before witnesses.

e. Between the obligation of fidelity and of justice this distinction intervenes: that the obligation of fidelity gives the promisee no right in the thing promised, but obliges only because everyone is bound to conform his deeds to his promises; but the obligation of justice gives the promisee a right to receiving the thing promised, so that from strict right what was promised is owed to him. Yet it does not give a real right in the thing promised, but only a personal right against the promiser or his heirs; therefore it is not licit for the promisee secretly to seize the thing promised for himself.²

2. A promise even obliging from justice ceases: a. if, after the promise has been made, a notable change of things becomes known or supervenes, which, if it had been known or foreseen before the promise, would have impeded it: for any gratuitous promise is considered made under this tacit condition: if it can be fulfilled without grave inconvenience; b. if before execution the motive cause of the promise ceases, by which the promiser was truly moved either uniquely or principally to promising; c. if the thing promised without fault of the promiser has become impossible, illicit, or useless to the promisee.

3. Whether a promise must be fulfilled if before execution the promisee dies depends on the intention of the promiser: if the promiser intended either uniquely or primarily the person of the promisee, the obligation ceases, because when he is dead the motive cause of the promise ceases; but if he chiefly intended the family or heirs of the promisee, the obligation does not expire.

4. If before execution the promiser dies, a real promise passes to the heirs, unless it is established that the promiser wished to obligate himself alone; a personal promise does not pass to them (n. 210, 3).

¹ Cf. St. Alphonsus, n. 720.

² Cf. Lugo, disp. 23, n. 12 ss.

A SIMPLE promise is a unilateral and gratuitous contract by which the promisor binds himself to do something for another.

English law will not enforce a simple promise for which no valuable consideration was given and which was not entered into by deed. In truth, a simple promise is hardly considered to be a contract, inasmuch as this term is confined to such agreements as the law will enforce. However, in the forum of conscience a simple promise begets an obligation to fulfil it, for an honest man is faithful to his promises.

The mere expression of an intention or of a purpose to do something must be distinguished from a true promise. No new obligation is created by the former, whereas a promise imposes on the promisor a new obligation. This obligation arises from his intention to bind himself by his promise which must be made known to, and accepted by, the promisee. Until acceptance there is merely an offer, which may be revoked at will by the offeror; when the offer is accepted the promise becomes a binding contract.

There is a dispute among theologians concerning the kind and quality of the obligation imposed by a simple promise. An onerous promise for which consideration is given by the other party and mutual promises bind in justice, and consequently under pain of grievous sin in serious matter. Similarly, where the promisee has been led to rely on a promise, and would suffer serious loss unless the promise were fulfilled, the promisor will be under a grave obligation to fulfil it. Apart from these circumstances the obligation of a simple promise will depend on the intention of the promisor. If he intended to give the promisee a strict right to what was promised, he will be bound in justice; otherwise he will only be bound by the virtue of fidelity, which is a self-regarding virtue, and imposes an obligation to make the fact agree with one’s word. The virtue of fidelity of itself only binds under pain of venial sin.

A promise will cease to bind if some event takes place or becomes known subsequently which would have prevented the promisor from making the promise if it had happened or been known beforehand. For a simple promise is essentially conditional; the promisor binds himself to do something under certain suppositions and in certain circumstances; if those suppositions are not verified, or if the circumstances become changed, the obligation of the promise ceases. All the more will a promise cease to bind if what was promised becomes unlawful and wrong, or useless, or impossible. It is obvious that release by the promisee, and other causes, which are sufficient to discharge contracts according to what was said above, will also suffice to do away with the obligation of a promise.

I. Notion. A promise is a giving of faith to another concerning something to be given or done. It differs both from a simple proposal and from a donation. It is said:

1. From a simple proposal; this is the mere will of doing or omitting something. Moreover, those things which verbally seem to be promises are often in reality simple proposals, insofar as they are not made with the mind of obliging oneself, but only of testifying to the present will; but a simple proposal does not oblige, not even from truthfulness, but at most from constancy, if there is no reason for changing; which is rare in common and free proposals.

2. From a donation, which is a giving of a right, whether in a thing or to a thing, made gratuitously to another.

II. Division. A promise can be distinguished into a promise properly so called and one improperly so called. A promise properly so called is the one which we have defined. One improperly so called is a promise made with the intention of conferring on someone a right to a thing; but a promise of this kind, strictly speaking, is a kind of donation. Now then:

1. A promise improperly so called is had or is presumed to be had: 1° when someone expressly wills to oblige himself from justice; likewise, if expressly under grave obligation, because a promise properly so called obliges only under light obligation; 2° when an oath, or a public writing, or a promissory note, or witnesses are added to the promise; 3° when neglect of the promise would manifestly tend to the damage of the promisee, as if someone promises to a poor man, wishing to buy a horse, that the price will be given as a loan (St. Alphonsus, III, 720); 4° when a mutual promise has place, as in betrothals.

2. Outside the aforesaid cases, a promise properly so called is had or is presumed to be had; namely: 1° if someone wills to oblige himself expressly from fidelity; 2° if someone wills simply to oblige himself, and does not add an oath, a public writing, a promissory note, or witnesses. Moreover, people commonly will simply to oblige themselves.

3. In doubt as to what kind of promise was present, practically one must stand in favor of a promise properly so called.

III. Obligation. 1. A promise properly so called induces an obligation of fidelity, as is sufficiently drawn out from the notion handed down. But the obligation of fidelity is only light, because neglect of it does not involve the injury of a right properly so called, and therefore brings with it only a light injury of the social order. St. Thomas says thus: "It must be said that according to honesty, from any promise a man is obliged to a man" (II-II, q. 88, a. 3, ad 1).

2. A promise improperly so called induces an obligation of justice, and one grave from its own kind; this is clear from the notion explained. But note that by St. Alphonsus and others, "to constitute grave matter in a promise there is required matter four times greater than in mortal theft; because the promisor deals with his own, the thief with another's" (III, 720).

IV. Cessation of the obligation. The obligation of a promise ceases: 1° by remission of the promisee; 2° if the thing promised becomes impossible, illicit, or useless to the promisee; 3° if in a reciprocal promise the other party does not stand by what was promised; 4° if there supervenes a notable change of circumstances which, if it had been foreseen, would have prevented the promise; for the one promising is not judged to have obliged himself for such an event (St. Thomas, II-II, q. 110, a. 3, ad 5; St. Alphonsus, III, 720). Therefore it ceases if, for example, the promisee becomes rich from being poor; if he shows himself ungrateful, and so forth; likewise it can cease, for example, because of the misfortune of the one promising, and so forth.

Corollary I. The obligation of a promise passes to the heirs of the one promising, and indeed by the same title, if there is question of a real promise; but it does not pass if there is discussion of a personal promise (n. 649).

Corollary II. The right or quasi-right arising from a promise passes to the family, the heir of the promisee, if the promise is judged to have been made with a view not only to the promisee, but also to his family.

Corollary III. A promisee to whom satisfaction is not made cannot use occult compensation, if the promise was properly so called, because such a promise confers no strict right.

Every valid contract obliges to faithful performance as a duty of conscience, even though it be unenforceable and without civil obligation. We shall discuss the properties of this obligation.

(a) Quality of the Obligation.—Onerous contracts oblige in virtue of commutative justice and under pain of restitution; gratuitous contracts oblige according to some from justice, according to others from fidelity, according to others from fidelity or justice as the obligor intends (see 1692, 1753). In practice one may follow the rule that a liberal promise or wager or other gratuitous contract obliges only from fidelity with no duty of restitution, unless it be certain that the promisor intended to bind himself in justice. One is responsible, however, for damages resultant on breach of promise. The obligation seems to be one of legal justice only when the thing promised is something on which a pecuniary value cannot be set and consists in compliance with law (e.g., in suretyship or bail for keeping the peace or appearing in court).

(b) Quantity of Obligation.—In onerous contracts the degree of obligation depends on the importance of the subject matter, and hence it is a mortal sin to violate a contract in which a grave right is concerned; in gratuitous contracts the degree of obligation depends entirely, according to some, on the will of the person who liberally binds himself, but others hold that it depends on the importance of the subject-matter.

(c) Subjects of Obligation.—The parties to the contracts and those who take their place (e.g., heirs, executors) or who are responsible for the contract (e.g., those who commanded the agreement) are morally bound to fulfill the agreement, while others are bound not to interfere with the fulfillment.

(d) Objects of Obligation.—Directly, there is the duty of observing what is contained explicitly or implicitly in the agreement, and indirectly of making good any losses caused by breach of contract. A rescindable contract obliges until it is lawfully disaffirmed by the party who has the right to break it; a quasi-contract imposes on the party who has benefited by the services or expenses of another a moral obligation of making compensation. If a contract transfers ownership (e.g., contract of sale passing title to buyer, mutuum), the transferee must bear the risks and expenses of the thing transferred; but if it does not transfer ownership (e.g., contract to sell, commodatum) or has not yet done so (e.g., contract of sale in which title will pass later, on delivery or payment), the transferer has the risk and expense (see 1796).

Infidelity and Violation of a Secret.—It remains to speak of the vices of infidelity and violation of secret (see 2388 a). As to the former, since it has been discussed elsewhere (1877 sqq., 1888, 1889; see also the matter on Promissory Oaths), it will suffice here to ask the question: Is the breach of a promise freely given a sin?

(a) If observance of the promise is due from fidelity only, there is no legal fault, but there is moral fault, and hence the breach of the promise is a sin. The malice is essentially the same as that of untruthfulness (see 2395), for both the liar and the promise-breaker show themselves unreliable, the former because his words do not square with his mind and the latter because his deeds do not live up to his plighted word. Breach of promise, then, seems per se to be a venial sin, though there are often circumstances (such as damage done) that make it mortal.

(b) If observance of the promise is not due even from fidelity, on account of the presence of some defect, there is no moral obligation to keep the promise and no sin is committed by not keeping it. The defects referred to are such as make the promise lack force from the beginning (e.g., if it was immoral or extorted by force), or deprive it of the force it had (i.e., inability on the part of the promisor or loss of right on the part of the promisee). The promisor is unable to keep the promise, if the thing promised has become physically impossible (e.g., he no longer has the strength or the means to perform what he promised), or morally impossible (e.g., the thing promised has become unlawful, or a notable change has taken place which, could it have been foreseen, would have prevented the promise). The promisee loses his right if the sole or principal reason that dictated the promise has ceased, or if the promise has become useless to the promisee, or if the promisor has been released, or if the promisee forfeits his claim by his own perfidy towards the promisor (see 2256 sqq., 1889).

What is the order of matters to be treated? Having explained the general doctrine of contracts, we now make a step toward their various species. We shall speak first of gratuitous contracts; then of onerous ones.

What is a promise? A promise is a deliberate and spontaneous obligation of fidelity, made to another concerning some good and possible thing. - Deliberate and spontaneous: because through it we freely assume an obligation toward another, so that we may confer some benefit on him. Hence an indeliberate or half-deliberate promise, extorted by fear or fraud, gives birth to no obligation. S. Th. 2. 2. q. 89. a. 7 ad 3. Obligation of fidelity; for by a promise we ordinarily oblige ourselves only from faith, or the virtue of fidelity, by which deeds correspond to words. Concerning some good thing: for a promise concerning a bad thing gives birth to no obligation, according to R. 60 of Law in the Sixth: In evil promises it is not expedient to keep faith. This is to be understood even if the promise had been firmed by oath; for according to R. 58 of Law in the Sixth: An oath furnished against good morals is not obligatory. And possible; for according to R. 6 of Law in the Sixth: No one can be obligated to the impossible. - C. A. 861.

You will resolve: A promise differs from a simple proposal in this, that one promising obliges his fidelity to another, or himself from the virtue of fidelity, or even of justice; but one proposing does not oblige himself to another, but only determines himself in the present to do or omit something in the future. Hence he who does not keep a simple proposal, for example of fasting or of paying certain prayers, per se does not sin, unless he is obligated from elsewhere to doing something similar; but only the ugliness of inconstancy follows, beyond and against his intention. S. Th. 2. 2. q. 88. a. 1; Lugo q. 22. n. 1.

Does a promise not yet accepted oblige? A promise does not oblige before acceptance by the promisee, that is, of him to whom the promise is made, or without it. It is proved: Because an active right on the part of the promisee must result from his own acceptance; and therefore without this, neither can a passive obligation in second act result on the part of the promisor. Moreover, every pact must be perfected by the consent of each party making the pact. Therefore also a promise. C. A. 861.

You will resolve: Therefore before acceptance a promise is revocable by the promisor, because before acceptance it gives birth to no obligation and still remains in the power of the promisor. From C. A. 862, if the promise is verbal, it must be accepted immediately; if written, acceptance must be made and notified in the time established by law; before that time it cannot be revoked, but after it has elapsed it is no longer obligatory. But someone can accept through another chosen for this, or through another who has care of him, for example a father for a son, a religious for a monastery, a Prelate for his Church, a wife for a husband. For he is considered to constitute one person morally with him. From C. A. 881, no one can make or accept a promise through another, except in cases determined by law. A promise, whether made through a messenger or through a mandatary, if revoked before acceptance, does not hold.

But if it is made through a mandatary, it is necessary that the revocation become known to the mandatary; and if it could not become known, the revocation has no value, and the promise holds just as if it had been made by the mandator himself. If the promisor dies before acceptance, a promise through a messenger or through a mandatary does not hold, for the mandate ceases. If the promisee dies before acceptance, the promise can still be accepted by the family and by the heirs, if the promisor intended these persons also per se and principally; otherwise, however, the promise remains altogether invalid. Cf. 991, 1002.

How does a promise oblige? A simple and gratuitous promise, speaking per se, obliges only under venial sin. It is proved: Because the obligation of a simple promise arises only from the virtue of fidelity, which per se obliges only under venial sin. Hence by the common judgment of men, violations of simple promises are customarily esteemed little. L. 837.

Speaking per se; for by accident even a gratuitous promise could oblige under mortal sin, as would happen: 1. When the promisee, because of the promise not fulfilled, would incur grave damage. 2. When the promisor would confirm the promise by a promissory oath; for thus he would at the same time be obligated from the virtue of religion. 3. When the promisor would confirm his promise by a handwritten document, so that the promisee could act civilly; for thus he would at the same time be obligated from the virtue of justice. Therefore someone can oblige himself from justice, and then he is gravely obligated in grave matter. "It does not appear," says Lugo d. 23. n. 91, "why you could not gratuitously and without any preceding debt wish to oblige yourself from justice to another to give or do something afterward in his favor. For just as you can gratuitously donate to him a house, and therefore transfer into him some real right in the house, which is the object of proper justice, why could you not also gratuitously transfer into him a right, not in the thing, but to the thing, and constitute yourself his debtor from a debt of justice? Indeed, all that which can be given for a price can also be given gratis, and just as you can sell a house for a price, so you can also donate it gratis; and thus in each case equally you give a proper right of justice in the house. Therefore, just as, with a price accepted, you can oblige yourself from justice to doing or giving something afterward, from which obligation you give a right from proper justice against yourself, so you will be able to give this very right gratis, and constitute yourself debtor from justice, just as if you had received a price for this obligation." "And here Sanchez, Sporer, and others commonly with Tournely note that to constitute grave matter in a promise, matter four times greater than in mortal theft is required, because the promisor acts concerning his own, but the thief concerning another's." L. 720; S. Th. 2. 2. q. 88. a. 3 ad 1.

L. Si pollicitus ff. de Pollicitat.; Gousset 782.

Is a right to the thing given through a promise? If by a promise someone obliges himself from justice, although a right in the thing is not given, nevertheless a right to the thing is given. For justice obliges to not harming another's right; therefore if at least a right to the thing is not transferred to the other, that promise no longer obliges from justice. But if by a promise someone obliges himself only from fidelity, no right to the thing is given to the other in any way... "For fidelity does not oblige to that which I owe to another, but to that which I owe to myself." Lugo l. c. n. 14. One failing faith injures no right of the promisee, because he has bound not the thing, but merely his own fidelity; hence he is not unjust, but lying and unfaithful.

Does an onerous promise, once the condition has been fulfilled, oblige under mortal sin? R. Affirmatively, per se. It is proved: Because a promise under an onerous condition, once the condition has been fulfilled, obliges from justice; but the obligation of justice per se, and from its genus, is grave. Hence, when the condition is gravely onerous and the promisor would subtract much from the reward, he would sin mortally; but when the condition is only lightly onerous and the promised reward is great, the promisor would sin only venially, even if he subtracted more, because as to the excess he seems to have obligated himself only from fidelity. C. B. 780, 782.

What about promises as they are generally customarily made? - Simple promises, as they are commonly made, do not urge even from fidelity, because commonly there is not in the mind of the promisor an intention of obliging his faith; therefore they enunciate a mere proposal. - Gousset 781, 783.

Whether, or how far, does a promise oblige if before execution the promisee or the promisor dies? R. To the first: It obliges in no way if the promise was made principally in favor of the promisee; because, with him dead, the end intended in the promise ceases. But otherwise if the promise was made chiefly in view of the family of the promisee, or of his heirs.

R. To the second: When the promisor has died, if the promise was to be fulfilled from justice, furnished with the due conditions, it must be fulfilled by his heirs; because every real obligation must pass to the heirs in the same mode and by the same title by which the promisor was obligated. Therefore, under grave or under light obligation, from justice, the heirs will be bound just as the promisor, while he was living, was bound. This same thing seems to have to be said of a donation, if the donor, after the donation has been made, dies before delivery of the thing. Cf. 994. If the promise was to be fulfilled only from fidelity, then the heirs per se are freed from every obligation; since such a promise involves a personal obligation, which does not pass to the heirs. Per se; unless, namely, the contrary will of the promisor is established. C. A. 900-955.

How does the obligation of an accepted promise cease? - It ceases on account of the following causes: 1. On account of condonation by the promisee; for anyone can renounce his own right. - 2. On account of change of the object, namely if the thing promised meanwhile became impossible, illicit by laws, or harmful or useless to the promisee, for whose utility and advantage it was made. C. A. 936. - 3. On account of a supervening change of state of the promisor or of the promisee, so that the promisor would not have promised if he had foreseen this change; as, for example, if someone promised one hundred florins to a poor person, and meanwhile he himself falls into poverty, and needs them for sustaining himself or his family honorably; or, if someone promised marriage to a girl who afterward becomes poor, very deformed, or is corrupted by another. - 4.

On account of ingratitude of the promisee; for this not only takes away the obligation of the promise, but also, if it is grave, makes a donation revocable, as is had in C. ult. de Donat. 5. Through compensation, namely when two persons promised something to each other, and one does not wish to stand by the promises; for, as is said in R. 75 of Law in the Sixth, In vain does someone ask faith to be kept to himself by him to whom he refuses to keep the faith furnished by himself. 6. On account of defect of the condition, or of the principal cause of the promise itself; as if someone promised something to another on account of poverty, whom afterward he finds not to be poor. For a promise is always considered made under such tacit conditions. Struggl 23; L. 720; S. Th. 2. 2. q. 110. a. 3 ad 5; Gousset 784.

What about promise from civil law? Promise is admitted in Roman Law, Dig. 1. 50. t. 12; likewise C. A. 861 ff. And it is also admitted in C. B. For in a. 780, a promise of some prestation in a contract is admitted, which must be established in writing; in a. 518, a promise of donation is admitted, which must also be established by a legitimate act; in a. 610, a promise of loan for consumption is had; in a. 656, a promise of salary for negotiation of marriage, which promise nevertheless gives birth to no obligation; however, what was paid on that account cannot be sought back. In a. 657 ff., there is question of public promise of some reward, which induces the obligation of payment. And promise is had several other times in the same Code, especially promise of a prestation to be paid to the bearer, concerning which there is question in a. 693 ff. From C. I. and C. G. nothing special is had concerning promise. From C. G. 893, it is drawn that no civil action is given from a simple promise. From C. I. 710, promise does not seem to be excluded from the various modes by which one's own rights can be transferred to others. The same must be said of C. H. 1089, 1254. But specifically there is question in C. G. 1589, 1590 concerning a promise of sale, and it is not distinguished from sale itself. But cf. here n. 1129. There is also question of it in C. H. 1451, and those contracting have the right to reclaim execution of the contract. In C. I. 53, 54, there is specific question of a reciprocal promise of marriage, which produces no legal obligation. Nevertheless if it was made by public act or private writing, or if publications were made by a civil magistrate, the one promising, who without just motive refuses to execute the promise, is bound to compensate expenses made by the other party in view of the promised marriage.

The same is prescribed in C. H. 43, 44. Likewise there is question in C. I. 1129; C. G. 1120; C. A. 881 concerning promise of the act of a third person; for example, that Titius will give surety for you. A promise of this kind gives a right to obtaining indemnity from him who obligated himself, or promised the ratification of the third party, if that one refuses to fulfill the obligation. Besides, if he promised only that he would take care that the other give or do, if he took care of this in vain, he is bound to nothing further. The same can be drawn from C. H. 1254. Lugo d. 23. n. 114. C. H. 836; C. G. 1326.

797. • A promise is a contract by which someone freely and spontaneously obliges himself to furnish or omit something gratuitously in favor of another. The conditions required for the obligation of a promise are: 1. That there be present a will of obliging oneself, at least virtual and implicit, which anyone is judged to have who seriously wishes to promise, even if he does not advert to the obligation.

2. That the consent of the same promisor be fully free and spontaneous, and therefore that all error and fraud concerning the substance and final cause, and all coercion or unjust fear, be absent.

3. That the promise itself be outwardly manifested and accepted, since every pact must consist of the mutual consent of two or more persons concerning the same object; and from another side no one is judged to wish to oblige himself toward someone unless that person accepts.

798. Questions. - It is asked, 1. What and how great is the obligation of a promise once accepted?

I reply. It is controverted among Theologians. A threefold probable sentence is given, according to St. Lig., n. 720 ¹.

¹ Certainly this distinction of three diverse sentences is seen in St. Alphonsus (book 3, n. 720), just as also among the Salmanticenses (tract. 14, ch. 4, nn. 78-83), from whom the Holy Doctor took it. Nevertheless, among these the three sentences are proposed in another order. For they place first the one which the Author has in second place; second, the one which the Author relates last; but third, the one which the Author exhibits first.

Moreover, the Salmanticenses all but destroy this their own construction. For the first sentence (the second according to the Author) they propose thus (l.c., n. 79): The first sentence says that it is a mortal sin not to fulfill an accepted promise, and that the promisor is obliged from justice, even if no other damage comes to the promisee. But then, where they discuss the second (the third according to the Author), they add (l.c., n. 81) that very many cited for that sentence rather stand for this one. Thus they say: "And from the authors of the first sentence several in reality adhere to that one (that is, the second), since they reduce that same grave obligation in a promise to the intention of the promisor, and we ourselves, many times in this Course when treating this matter incidentally, have conformed ourselves to this most probable opinion." But if the matter stands thus, why therefore do the Salmanticenses allege those authors for that first sentence, and why did they not rather cite them for the second? Add further, that others alleged by them for that first sentence dispute concerning promise insofar as it also has place in an onerous contract, as, e.g., Sylvester (v. Pactum, q. 4), Soto (De Iust. et Iur., book 7, q. 2, art. 1, ad 1), St. Antoninus (part 2, title 10, ch. 1, sect. 4), and Covarruvias (In C. Quamvis pactum, part 2, sect. 4, n. 15), which last two allegations St. Alphonsus adopted, just as also the others which he has (l.c.). But indeed, since in a true onerous contract the obligation of justice necessarily intervenes, while the Salmanticenses are not disputing concerning promises proper to an onerous contract, now these authors also are cited beside the point. And so that first sentence, as it is exhibited by the Salmanticenses, appears almost as a fiction devised by them.

But again, when they come to the third (it is the first according to the Author), they describe it thus (l.c., n. 82): "The third sentence, which we now embrace, ... asserts that, speaking of itself, a simple and gratuitous promise obliges only under venial sin." Nevertheless behold (l.c., n. 83), they add: "Nor do the things which the second sentence adduces for its part stand in the way; for we do not deny that anyone can oblige himself from justice, no debt preceding, just as he can gratuitously go surety for another, because suretyship in becoming is gratuitous, and once made obliges to payment from justice." Therefore here they confess that a promisor can oblige himself from justice, which of its kind imports a grave obligation, and whose violation of its kind is a grave sin. Therefore finally the Salmanticenses fall back into the second sentence (the third according to the Author), which is thus described by them (l.c., n. 80): "The second sentence says that it depends on the intention of the promisor whether an accepted promise in grave matter obliges gravely or not; for if the promisor wished to oblige himself from justice and gravely, he will remain bound by this obligation; if only from honesty and fidelity, as frequently happens, he will be bound only lightly; and thus it asserts that one must judge whenever the contrary is not established."

Therefore it will finally be permitted to conclude that both the first (the second according to the Author) and the third (the first according to the Author) sentence of the Salmanticenses, from their own confession, fall back into their second (the third according to the Author); whence it follows that this distinction of three diverse sentences is a certain fiction, which its own fabricators destroy with their own hands.

That seemed difficult to the Salmanticenses (l.c., n. 83), that someone would wish to promise nakedly, nothing else added, and that he would wish to oblige himself further than from fidelity. But this did not seem likewise difficult to Lugo, who explains the matter thus (disp. 23, n. 91): "It does not appear why you cannot gratuitously and without any preceding debt will to oblige yourself from justice toward another to give or do something afterwards in his favor. For just as you can gratuitously give him a house, and therefore transfer to him some real right in your house, which is the object of proper justice, why will you not be able to transfer to him gratuitously a right, not in a thing but to a thing, and constitute yourself his debtor from a debt of justice? The whole question is: what can be given for a price can also be given gratuitously; and just as you can sell a house for a price, so also you can give it gratuitously, and so in each case you equally give a proper right of justice in the house. Therefore, just as after a price has been accepted you can oblige yourself from justice to do or give something afterwards, from which obligation you give a right from proper justice against yourself, so you will be able to give this very right gratuitously and constitute yourself a debtor from justice, as if you had accepted a price for this obligation."

But the same Lugo had proposed the distinction between a promise which obliges from justice and one which obliges from mere fidelity in this way (l.c., n. 14): "I reply that there is a great difference as regards this (namely, the force of a promise according to the diverse intention of the promisor) between justice and fidelity. For justice obliges only to not injuring another's right, or to not usurping that which is another's without his consent. But when there was not a will in the promisor of giving a right to another, such a right was not transferred, because our thing cannot be transferred without our consent; whence justice cannot oblige one to preserve another's right which in reality does not exist, because I owe him nothing when the promise was merely gratuitous and without other prejudice to the promisee. But fidelity, as it is commonly said, does not oblige me to that which I owe to another, but to that which I owe to myself. For it is usually said that God, who is obliged not from justice but from fidelity, does not owe anything to another from His promise, but to Himself; because that obligation does not arise from a right which the promisee has and which the promisor must preserve uninjured, but from the obligation which he himself has of preserving fidelity in promises. For just as the obligation from veracity to speak the truth does not arise from the right of neighbor, but from the debt which I have of not impeding human commerce for myself, and of not taking away faith from myself in assertions; so the obligation from fidelity does not arise from another's right, but from the debt by which I owe it to myself not to impede human commerce for myself, and the trust of others from my words." The same Lugo elsewhere expresses this more briefly in this way (l.c., n. 91): "We have shown that the difference between fidelity and justice is in this, that fidelity gives no right to the promisee, but obliges only from this, that each one must conform his deeds to his promises, insofar as it is necessary for human living together, not only that words agree with the mind, which pertains to veracity and is opposed to lying, ... but also that deeds agree with promises, which pertains to fidelity and is opposed to infidelity."

And indeed this doctrine must be called truly most common, as it was also permitted to gather above from the Salmanticenses. For if any disagreement appears among the Doctors, it is to be referred rather to the manner of speaking than to the substance of the matter. Namely, there are some who call a true promise, as they say, or one properly or strictly so called, only that promise which obliges from justice and therefore brings in an obligation grave of its kind; but they distinguish this from a promise not true, or less properly and broadly so called, which they also call an assertion, which binds the promisor from fidelity only. Thus, e.g., Laymann (book 3, tract. 4, ch. 12, n. 1): "Promise is twofold: one improperly so called, when the intention of the one saying that he will do something in favor of another man is only to oblige himself from the virtue of fidelity and veracity, according to which we ought to be constant, truthful, and faithful in words; the obligation of constancy and fidelity of this kind of its kind and speaking of itself is light, only under venial sin.... But the other is a promise properly so called, when the intention of the promisor is to oblige himself from justice, so that to the other accepting the promise there is acquired a right and action, as of demanding something truly owed, at least in the forum of conscience...; and such a promise of its kind obliges under mortal sin." You have nearly the same things in Lessius (book 2, ch. 18, nn. 55 and 58), Sanchez (De Matrim., book 1, disp. 5, n. 20), Palaus (De Matrim., disp. 1, part 2, n. 14), Trullench (book 7, ch. 16, dub. 6, nn. 2, 3), etc.

The first sentence holds that a promise, of itself, obliges only under venial sin, from mere fidelity. The reason is that a gratuitous contract obliges only by the bond of fidelity, and fidelity does not seem to oblige under mortal sin if other inconveniences are absent. - Salmant. - Saettler, and others.

The third sentence, more common and more probable, teaches that the obligation of a promise depends on the intention of the promisor. Hence if he intends to oblige himself from justice, he is obliged under mortal sin in grave matter; but if he intends only to oblige himself from fidelity, he is obliged only under light sin. - Lugo. - Billuart. - Sporer. - etc. Moreover, for grave matter in a promise they require a quantity four times greater than in mortal theft. - St. Lig.

And indeed these things concern promise properly taken. For often promises, such as are commonly made, oblige neither from justice nor from fidelity, because the promisor does not intend to bind his faith strictly, but merely to state his purpose.

799. • It is asked, 2. What is to be said in doubt whether someone wished to oblige himself under grave or under light sin, according to the patrons of the third sentence?

I reply. More probably one must stand for the least part, because in doubt a certain burden is not to be imposed, especially in a promise, which requires the greatest spontaneity. - St. Lig., n. 720. Besides, it is certain that a promise seriously made and accepted in a grave matter can, per accidens, oblige under grave sin from justice, as if there should intervene the reason of enormous damage coming to the neighbor from the promise not kept. - Scavini.

It is asked, 3. Whether someone can accept a promise through another?

I reply affirmatively. Someone can accept a promise through anyone chosen for this, or through a familiar, because he is judged morally to constitute one person with him. He can also accept a promise through another who manages his care, e.g. a father for a son under paternal power, a Religious for a monastery, a Prelate for his Church, a wife for her husband.

It is asked, 4. When does the force of an accepted promise cease?

I reply. 1. If the promisee spontaneously condones it or cedes from his right. - 2. If the thing promised becomes illicit or useless. - 3. If the promisee does not stand by his own promises. - 4. If the state of things or persons is so changed that the promise does not seem to comprehend that event. - 5. If the cause which moved one to promise does not subsist in any way ². - St. Lig., ibid.

² This last point, if taken universally, is not true. For a past cause, however false, generally speaking does no harm and is held as not added. See Voet, In Pand., book 35, title 1, n. 9.

800. • It is asked, 5. Whether, or to what extent, a promise obliges if before execution the promisee or the promisor dies?

I reply to the first by distinguishing. It obliges in no way if the promise was made principally for the sake of the promisee; because, when he has died, the end intended in the promise ceases. But it is otherwise if the promise was made chiefly with a view to the family of the promisee, or his heirs.

I reply to the second. When the promisor has died, a promise clothed with the due conditions must be fulfilled by his heirs; because every real obligation must pass to the heirs in the same way and by the same title by which the promisor was obliged. Therefore the heirs will be held under grave or under light sin, from justice or fidelity, just as the promisor, while he was living, was held. Nevertheless, they will be able to be freed from every obligation if, from the circumstances of the thing or from signs, it is manifest that the promisor wished to oblige only himself personally. - Lugo. - Reuter, etc.

Case. Sylvinus sometimes says repeatedly to his maidservant Perpetua that he will pay to her, beyond the annual wage, a hundred scuta, or that in his testament soon to be drawn up he will leave the same sum of money as a legacy. But behold! Sylvinus is seized by sudden death before he could complete his purpose. But Perpetua without delay hastens secretly to take the money promised to her. Was this rightly done? I reply: By no means. For a promise does not give a right in the thing, nor therefore any faculty of occupying the promised thing by one's own authority ³. - See above, On Justice, n. 521. - Moreover, commonly these promises are nothing except a mere signification of purpose, and only state the will of giving something. - Gousset. - See Cases, n. 797 and following.

³ Nevertheless, a promise, if it is made from justice, gives the promisee a right to the thing (De Lugo, disp. 23, n. 100). See besides the things which the Author has below, n. 836. But in the case, this too must be observed, that the promise of Sylvinus is judged remunerative; and remunerative donations (which the Author also notes below, n. 828) display rather a certain payment of a debt than a gratuitous cession.

676. I. Notion. A gratuitous promise is a contract by which someone gratuitously obligates himself to furnish something to another. Hence for a valid promise three things are required: -

¹ Lessius, lib. II, cap. 18; Lugo, disp. XXIII; Salmant., cap. IV, n. 65-86; Billuart, diss. II, art. 1; St. Alphonsus, n. 720; Carriere, II, n. 472-485; Marres, lib. IV, n. 1-12; Ball. P., n. 626-630; Lehmk., n. 1081-1082; Noldin, n. 536-537.

(a) The intention of obligating oneself, and thus a promise is distinguished from a mere purpose, by which someone indeed intends to do or omit something, yet without wishing to assume a true obligation; wherefore he who does not keep a purpose is indeed guilty of inconstancy, but offends neither fidelity nor justice; - it likewise differs from donation, in which the thing itself is given immediately, while in promise an obligation is assumed of furnishing the thing at a future time.

(b) A spontaneous will, that is, immune from every error, fear, or force, since promise, as being a gratuitous contract, proceeds from liberality, and therefore requires full liberty.

(c) That the promise be manifested externally, and accepted by the promisee, namely by him to whom the thing is promised.

677. II. The obligation arising from promise. 1. According to all, an onerous promise, namely one made with an added condition that the promisee sustain some burden in order to obtain the promised thing, truly obliges from justice, and indeed of itself under grave matter, since it is an onerous contract. The same must be said of a mutual promise, which is made in betrothals, as is explained in the treatise on Marriage, n. 142.

2. But when the matter concerns a gratuitous and unilateral promise, it is controverted whether this obliges from justice or from fidelity, and indeed under grave or under light matter.

According to the more common opinion, the nature and gravity of the obligation depend on the intention of the one promising; for promise is a certain particular law which the promisor freely imposes upon himself according to his choice; wherefore it induces that obligation which he himself establishes: if he intends to bind himself only from fidelity and under light matter, he is obligated only under light matter and from fidelity; but if from justice and under grave matter, in the same way he is obligated from justice and gravely. - But the intention of the one promising must be judged both from his declaration and from the circumstances. - If the matter is doubtful, it must generally be inferred that the obligation is only from fidelity and under light matter, because an obligation of justice is not to be presumed, but must be proved. - Yet an honorable man stands firmly by his promises, whatever his intention may have been.

678. Now, since today civil laws require certain solemnities for the validity of a gratuitous promise, the intention of obligating oneself from justice is generally judged to be absent if formalities of this kind are omitted.¹ - Indeed promises which are uttered for the sake of boasting or from mere civility, and also promises that are wholly general, induce no obligation, because the intention of obligating oneself is lacking.

¹ By French civil law nothing special is defined regarding promise in general; but, from art. 1134, all legitimate agreements have the force of law for those contracting, provided these are certainly established; moreover, from art. 1589, a promise of selling something truly obliges in justice when there is mutual consent concerning the thing itself and the price; cf. Planiol, II, n. 1398-1410.

Nevertheless it can happen, from the circumstances, that a promise, even expressed by words alone, induces an obligation from justice, namely as often as violation of the promise brings harm to the promisee; thus, e.g., if a physician has promised to assist a certain sick person, and the latter, relying on such a promise, has called no other physician; or if a brother has promised his brother to pay half the expenses for the education of a nephew, if the latter enters such a college. This indeed appears still more if an oath is added to the promise, or the promise is signed.

He who promised an illicit thing contracted no obligation: "by promising he sinned, but by changing his purpose he does well."¹

¹ St. Thomas, 2. 2., q. 110, art. 3, ad 5.

679. III. Cessation of the obligation. A promise, even valid and obliging from justice, falls away: (a) if there supervenes or becomes known a change of things which, if it had been foreseen before the promise, would have impeded it; for it is judged to have been made under the tacit condition that it can be fulfilled without grave inconvenience; (b) if the promisee spontaneously condones it; (c) if, when the promise was mutual, the other has not stood by the promises.

When, before the execution of the promised thing, the promisee dies, the promisor is held to nothing, if he wished to benefit solely or principally the promisee himself; but if principally his family, the obligation does not expire. - If the promisor dies before execution, a personal promise, that is, concerning an action to be personally furnished, does not oblige the heirs; if it is real, that is, concerning a thing to be given, it passes to the heirs, unless from the circumstances it is clear that the promisor did not wish to obligate them.

I. Preliminary Notions. Three things, in the first place, are to be distinguished: a resolution, a promise of fidelity, a promise of justice or contract of promise. A resolution is merely a decree of the will by which, with respect to another, nothing has been taken away from the freedom of the will; a promise, an obligation having been undertaken with respect to another, differs from a resolution. But to another there can merely be pledged fidelity, or a right can be conceded to the promised performance. Fidelity, here, means the quality which makes a man worthy to be believed and trusted. He who pledges fidelity wills that the other to whom he promises believe and trust him: then commerce among men, which rests upon mutual fidelity, requires that the one, by carrying out what has been said, avoid the deception of the other. This is the obligation of fidelity, which is not grave.

But he who concedes a right to another has alienated his own liberty, i.e. he has permitted into another's hands the liberty of doing otherwise. This is the obligation of justice, to which satisfaction must be made, by execution of the promise, under grave or light obligation, according to the capacity of the matter and the intention of the parties.

But there can be promised an act or an omission, or a thing. Hence promise is distinguished as personal and real. A personal promise is of one's own act; a real promise is of a thing, or even of an act with respect to which it does not matter by whom it is performed.

II. Definitions. 1. A simple promise can be described in a confused way as: a deliberate declaration, made to another who knows and does not resist, of a gratuitous performance useful to the other.

We call the description confused, because it does not distinguish the contract of promise from a promise obliging from fidelity.

It must be deliberate, because, as was said concerning a vow, n. 209, a semi-deliberate promise induces no obligation: that deliberation is required which is sufficient for sinning mortally.

To another who knows: as long as the other is ignorant, not even an obligation of fidelity has been undertaken. For this obliges one not to deceive the other; but he who is ignorant of the declaration can suffer no deception from a changed intention.

And not resisting. For he who positively refuses the declaration expects no execution, and therefore cannot be deceived.

It is called gratuitous, insofar as it is not made because of another's promise or debt.

Useful to the other. For the law of nature itself, by its positive prohibition, invalidates a promise harmful to another; and it does not sanction one that is wholly futile.

Among harmful promises we must place also dishonest and illicit promises.

But it is repugnant to the divine holiness that it acknowledge a bond of iniquity.

Indeed, a prodigal promise, as such, is judged so illicit that it probably does not oblige (St. Alphonsus, L. 6, n. 851, against Lugo, Iust. d. 18, n. 60. 61).

Standing by the law of nature, the other to whom the promise ought to be useful can be the contracting party or even a third party. For the bond of charity effects that what is done for my neighbor ought to be judged as done also for me.

The promised performance can be real or personal.

2. The contract of promise can be described as: a deliberate and gratuitous concession of a right, made to another accepting, for obtaining a useful performance. For by contract a right is transferred. But because no one acquires a right except willingly, the obligation does not arise before the other's acceptance. But when a promise made by letters is judged perfected, we saw above, n. 419. 420.

Positive laws, since they do not attend to the general bond of nearness, are not accustomed to sanction promises which are not useful to the other contracting party. But that utility can be created by an added penal clause or by a donation made to the promisor. Nor do laws directly consider a promise from mere fidelity.

III. The Obligation of a Promise. 1. As to the nature of the obligation: a) a strict obligation of justice is not to be presumed; it is more easily had in mutual promises and in written promises than in gratuitous verbal ones; b) if the execution of a definite promise, already at the very moment at which it is promised, seems necessary for avoiding notable damage, even a verbal promise will be judged to oblige from justice: as if you promise a determined sum for making some expense. But even then the force of the promise is reasonably, and rather strictly, to be taken. He who, for example, has promised definite money for the education of some young man, unless he has expressly promised more, is not judged to have bound himself to pay that money through several years (until the education is completed); c) a promise little defined, or one which can be a courteous response, will not oblige the promisor even under fidelity. Tanquerey, III, 678.

You will ask whether an obligation of fidelity can be converted into an obligation of justice by reason of damage that will follow from non-execution. There are those who seem to affirm this. But we think it must be said thus. Fidelity fictitiously given, with foresight of damage of this kind, would be a harmful act whose consequences would have to be repaired from justice. But if I sincerely interposed my constancy, the other who relies on it knows that I can change my intention without injury. If that harms him, let him impute it to himself, because he gave faith to me. My obligation is not changed on that account. But after I have changed my will, I shall be bound from justice to make the other more certain, if my silence would be the cause of a harmful deception. In this respect even the judge of the external forum can judge concerning a promise by which someone's mere fidelity has been pledged.

2. As to the gravity of the obligation, this of itself is light if the obligation is of fidelity; but even when it is of justice, they estimate grave matter as four times greater than grave matter of theft.

Only an obligation of justice permits occult compensation.

IV. Cessation of the Obligation. 1. Besides the general modes by which the obligation of a contract is taken away, it must be noted that the obligation of a gratuitous promise ceases because of an inconvenience on account of which, if it had been foreseen, the promise would not have been made. Here again, damages which perhaps will come to the promisee from this cannot be imputed to the promisor; yet it is equitable that, in weighing the inconvenience, he take account of the grave damage which the other will suffer.

2. When the promisee has died, the promise will be extinguished if the intention of the promisor regarded only the promisee; but the contrary, if he wished to be beneficent to the family itself. But when the promisor has died, a promise of a personal act has become impossible, and therefore is taken away. But a real promise, if it was one of justice, burdens the patrimony and therefore the heirs. Otherwise if it was one of fidelity, unless the promisor absolutely willed that the things promised be completed by execution. For then he is judged to have bequeathed the performance to the promisee, so that the heirs must fulfill the promise from justice. That legacy, which for pious causes could be valid because of canonical form, will nevertheless, from positive civil law, be invalid, unless it is contained in a testament of civilly suitable form, or unless the law itself sanctions transmission of the obligation to the heirs. Thus we said that what Lugo, Iust. d. 23, n. 98, says too absolutely, in our judgment, concerning the translation to heirs of every real promise, must be tempered.

How matters stand if, before the promise has been accepted, the promisor or the promisee dies, was said above, n. 421.

3. Concerning positive law we shall note only this, that in more than one law it is now sanctioned that a promise holds the one making the declaration even before acceptance. Cf. what was said above, n. 418; cf. also Pacifici-Mazzoni, IV, p. 252, note b), Colin and Capitant, II, 270.

Jurists also labor in explaining the certain obligation which promises made publicly through newspaper announcements or in a similar way, and also titles to the bearer, bring forth, because the declaration has been made to persons not determined. Cf. Pacifici-Mazzoni, IV, p. 78 ff.

The Brazilian Code assigns title VI to obligations which arise from unilateral declaration. Chapter I treats of titles to the bearer; chapter II of promised reward (cf. art. 1505-1532).

V. Corollaries. 1. Unless a promise has been made from justice, the promisee, neither while the promisor is living nor after his death, can satisfy himself secretly. If, however, the promisor has been overtaken by death after an absolute promise was made, the promisee who secretly took the thing promised to him seems able to be excused from restitution, on account of the probability which St. Alph., L. 6, n. 720, ascribes to an opinion of this kind. Cf. Aertnijs-Damen, I, 881. Yet the reason is not to be sought from this, that every promise would oblige from justice (which opinion St. Alph., l. c., undeservedly ascribes to Laymann), but rather because Lugo and several after him admit that the object of an absolute promise is virtually bequeathed by the deceased.

2. Let us not confuse a resolution with a promise; an intention of donating or bequeathing, with a donation or legacy. Domestic servants, not rarely, relying on certain benevolent words of their master, think that they have a right either of demanding from the heir, or of taking, what they were hoping to obtain by title of legacy. But unless the master by words formally or equivalently said, "this is yours," "I give this to you," he made no donation by which they acquired a right; unless he said absolutely "I will that after death such money or such a thing be yours," but merely spoke in this or a similar way: "I shall not forget you; you will be satisfied," they cannot rely even on an informal testament so as secretly to take something for themselves as remunerative. Wherefore a servant to whom the master has manifested an intention of a legacy has no right if the master, overtaken by unexpected death, made no testament. Nor is the heir bound to believe a servant affirming an absolute will of the deceased to donate or bequeath; indeed, since there is no question of a pious cause, he can neglect a legacy which is not contained in a testament of civil form.

Yet it would have to be said otherwise if the servant, relying on the words of the master, had asked for or accepted either no wage or only an unequal wage for his labor: for then the services were as if conditionally gratuitous. And it is altogether fitting that the heir, according to the presumed or at least reasonable will of the deceased, compensate faithful services with an equitable remuneration.

²

² In German: promise of a gift (Schenkungsversprechen).

267. Notion. A gratuitous promise is a contract by which someone liberally and spontaneously obliges himself to furnish or omit something for another; or more briefly: A promise is the free and spontaneous giving and acceptance of faith concerning a lawful, possible, and useful thing. Nevertheless, an onerous promise is also given,³ which can intervene in other contracts. We do not treat it here. He who promises something is called the promisor; but he to whom something is promised is wont to be called the promisee. The following are required for a gratuitous promise:

1. The intention of truly obliging oneself. Hence a promise differs from a purpose, by which someone indeed intends to do something but does not wish to undergo a true obligation; it also differs from a donation, which is a giving of a thing, while a promise is only a giving of faith.

2. A spontaneous and free will, i.e., free from every error, force, or fear. In a gratuitous promise, even slight fear is excluded, because otherwise it is no longer altogether gratuitous and spontaneous. It is otherwise in an onerous promise.

3. Manifestation and acceptance of the promise. For a promise is a contract. But no contract between men is perfected unless the will of each contracting party is manifested and accepted by each. Authors dispute whether acceptance must always be express. Sometimes, from the circumstances, even the silence of the one to whom the promise is made is sufficient acceptance, since some benefit is conferred upon him from the gratuitous and liberal promise; and then the adage holds: "He who is silent seems to consent."⁴

³ It is sometimes called an offer of reward (Auslobung; cf. German Civil Code § 657) and is had if someone promises some gift to one who produces some determinate result.

⁴ Cf. Billuart, De contract. diss. 2, a. 1.

268. Obligation of a promise. Concina⁵ notes excellently concerning this matter, saying: "The discussion is not about an onerous promise, inducing an obligation on each side; nor about a civil promise, producing, besides the obligation of fidelity, a legal debt. A civil promise (inducing a legal debt) is said to be that which is made before a notary and witnesses, or by means of a signed document, by force of which the promisor or donor can be compelled in the external forum to fulfill what was promised. All agree that these two promises give rise to a grave obligation from justice. The dispute is only about a simple private promise made in words and accepted."

Violation of a legitimate and accepted gratuitous promise is a sin opposed to truthfulness and fidelity. Thus all. If this violation accidentally causes unjust damage to the promisee, it is a sin grave in its genus against justice. Thus also all. E.g., one who culpably does not keep a promised secret and thereby causes grave damage to another sins mortally against justice and is bound to restitution. - But if someone does not keep a promise made without sufficient reason, yet without causing notable damage to the promisee, is this a mortal sin in its genus? There are three opinions.⁶

The first contends that one who does not fulfill an accepted promise sins mortally, and indeed against commutative justice. The reason is that the virtue of fidelity is a potential part of justice and, as the foundation of all obligations, is especially necessary to the republic and to human society. St. Antoninus,⁷ Silvester Prierias,⁸ Dominic Soto,⁹ and Billuart¹⁰ defend this opinion. But if it is asked according to this opinion what matter is grave in the violation of a promise, these authors respond that matter four times greater than in theft is required before a grave obligation of restitution arises.

The second opinion teaches that the gravity of the obligation depends upon the intention of the promisor. For a promise is a certain private law which the promisor freely imposes upon himself. Therefore, he can bind himself gravely or lightly, from justice or from fidelity. Thus Lugo¹¹ (who says that this opinion altogether pleases him), Molina,¹² and others. But this opinion does not reach the point of the difficulty. Certainly a liberal promise does not oblige beyond the explicit intention of the promisor, and consequently the promisor can oblige himself either under grave sin or under light sin, just as the obligation of a vow, which is a promise made to God, can be light or grave according to the particular intention of the one vowing. Therefore the knot of the difficulty is how great the obligation of a promise is from its own nature, abstraction being made from any particular intention of the promisor. A particular intention of gravely obliging oneself is considered to be in the promisor: 1. when he confirms the promise by an oath; 2. when he promises by stipulation, e.g., I promise 1,000 francs to him who discovers such a criminal; 3. when he promises before a notary, or before witnesses explicitly assumed for this, or by a written document; 4. when he says: I oblige myself as much as I can, or something similar.

The third opinion defends that a simple accepted gratuitous promise obliges of itself only under light sin. The reason is that the violation of a promise of this kind is as it were a simple lie. But a simple lie is only a venial sin in its genus, as was proved above, n. 170. Therefore the same is true of the violation of an altogether gratuitous promise. There is added the common estimation of men, who do not think that they have committed a mortal sin when they have broken a simple and wholly liberal promise given, yet without damage to their neighbor. St. Thomas seems to favor this opinion, saying: "According to moral rectitude, from every promise a man is obliged to a man."¹³ Thus also teach Cajetan,¹⁴ Bañez¹⁵ (but nevertheless not so clearly), Peter de Ledesma,¹⁶ John of St. Thomas,¹⁷ and many others. Since every question in which there is question of mortal sin is perilously determined unless the truth is expressly had, and since a sin is not to be asserted as mortal unless it is certainly established, hence this third opinion seems to us to be preferred in practice. Nevertheless, a frivolous violation of a promise made is truly detestable and not rarely causes grave enmities.

⁵ De iust. et iure l. 3, diss. 4, c. 20, n. 6ff.

⁶ Cf. St. Alphonsus, Theol. mor. l. 3, n. 720.

⁷ S. theol. P. 2, tit. 10, c. 1, § 4.

⁸ Summa, s.v. "Pactum," q. 4.

⁹ De iure et iust. l. 7, q. 2, a. 1 ad 1.

¹⁰ L.c., § 2.

¹¹ De iust. et iure disp. 23, n. 90.

¹² De iure disp. 262, n. 11.

¹³ S. theol. 2, 2, q. 88, a. 3 ad 1.

¹⁴ Comm. in 2, 2, q. 113, a. 1, dub. 4.

¹⁵ Comm. in 2, 2, q. 62, disp. 5, dub. 2.

¹⁶ De matrim. q. 45, a. 5, dub. 2.

¹⁷ 1, 2, q. 88, disp. 29, a. 9.

269. Cessation of the obligation. St. Thomas enumerates two reasons on account of which a promise made ceases: 1. when the thing promised is illicit; 2. when the thing promised, or the circumstances of the thing or person, are notably changed.

"Nevertheless, [the promisor] can be excused for two reasons: in one way, if he promised that which is manifestly illicit, because he sinned in promising but does well in changing his purpose; in another way, if the conditions of persons and affairs have changed. For, as Seneca¹⁸ says, in order that a man be bound to do what he promised, it is required that all things remain unchanged; otherwise he was neither mendacious in promising, because he promised what he had in mind, with the due conditions understood; nor is he unfaithful in not fulfilling what he promised, because the same conditions do not exist. Hence even the Apostle did not lie, who did not go to Corinth, whither he had promised that he would go, as is said in 2 Cor. c. 1, and this on account of the impediments which supervened."¹⁹

Modern authors, besides these two reasons, add two others, namely: a) if the promisee freely remits; b) if, a mutual promise having been made, the other did not stand by what was promised. For faith given is also broken with impunity toward one who has broken faith.

You will ask: What are the obligations if the promisor or the promisee dies before the promise has been completed in execution?

a) If the promisee dies and the promise was made principally for his personal favor, then the obligation of the promise also dies; it is otherwise if the promise was made principally, or at least equally principally, in favor of the promisee's family and his heirs. For then the obligation remains.

b) If the promisor dies, a personal promise, i.e., concerning a personal action to be furnished, ceases; but a real promise, i.e., concerning a thing to be given, passes to the heirs. - In practice, however, it is safer to follow the statutes of the civil code.

Note. Since a gratuitous promise does not cause a right in the thing, it is not lawful to employ hidden compensation in a case in which the promisor did not stand by what was promised without sufficient reason. If, however, the promise was from justice or was remuneratory, one who in good faith occupied the thing promised can retain it unless a judge establishes the contrary. E.g., a niece serves, without an explicit contract, a sick uncle who explicitly promised that he would give a gift of 1,000 francs. When through sudden death the uncle cannot stand by this promise, the niece can be left in good faith if she took the promised 1,000 francs.²⁰

¹⁸ De benef. l. 4, c. 34ff.

¹⁹ S. theol. 2, 2, q. 110, a. 3 ad 5.

²⁰ Thus Göpfert, Moraltheol. II, n. 99; Marc, Instit. mor. I, n. 1062; Aertnys, Theol. mor. l. 3, n. 404.

1061. DEFINITION. Promise is a liberal, deliberate, and spontaneous giving of faith, externally made and accepted, concerning a possible and honest thing.

It is said: liberal, and thus it differs from an onerous contract; deliberate, that is, with full advertence; and spontaneous, that is, immune from error, deceit, and fear; a giving of faith, and thus it is distinguished both from donation, in which the thing itself is immediately handed over, and from a mere purpose, which is the simple will of doing something and imposes no obligation; externally made, that is, such that a man can know it; accepted, otherwise consent would not be mutual. But tacit acceptance suffices; indeed, someone can accept for another whose care he manages. Thus a father accepts for children, a religious for a monastery, a prelate for a church, a husband for a wife, etc.; concerning a possible and honest thing; because there is no obligation of impossibilities, and "faith ought not to be observed in evil promises" (Reg. 69, in 6). But if the promise is prodigal, the thing promised must be reduced to equity, according to common estimation; and if the thing is indivisible, nothing is owed (III, 720, 735).

The object of a promise can be either an action to be done by the promisor, a personal promise, or a thing to be furnished for the utility of the promisee, a real promise.

If a promise is made under a certain formula of words, for example one asking: will you give me the book? and the other responding: I will give it, it is called STIPULATION. He who promises is called the promising one or promisor; but he to whom it is promised is called the promisee.

1062. PRINCIPLE. The obligation of a promise depends on the will of the promisor. If he wished to obligate himself only from fidelity, which ordinarily happens, he is held only under light sin, even in grave matter. If he intended to bind himself from justice, the obligation will be grave or light according to the quantity of the matter. But for constituting grave matter in a promise from justice, there is required a quantity four times greater than in grave theft, because the promisor disposes of his own. - In doubt concerning the intention of the promisor, one must stand for the least part.

Points to be noted. 1. An obligation from fidelity says only a moral debt imposed on the promisor from honesty; an obligation from justice superadds to this debt a right to the thing (cf. n. 839), which is acquired by the promisee (Lugo, l. c., n. 12).

2. A public promise, expressed by a public instrument, is always considered elicited from a motive of justice; for that, in the likeness of law, binds successors. According to some authors, the same must be said if the promise is firmed by oath. Cf. Delama, n. 178; Muller, II, § 110; German Code, 311, 313, 518.

3. Any promise, by accident, obliges from justice, namely if a neighbor would suffer damage from the promise not being observed; for example if you promised him a loan for consumption, and he, relying on your promise, did not provide for himself from elsewhere.

4. The promisee cannot secretly snatch the thing promised, because a promise does not give a right in the thing (cf. n. 917). Except if it is a question of a remuneratory promise (cf. Gopfert, II, n. 99). Yet after the fact, he who in good faith has occupied a thing promised to himself does not seem to be held to restitution. The reason is that it is not established that he retains another's thing with the owner reasonably unwilling. Cf. Aertnys, l. III, n. 404; Lessius, l. c., c. 17, n. 44.

5. The obligation of an accepted promise ceases "if afterwards the promised thing is rendered impossible, or very harmful, or illicit, or useless; and generally speaking, as often as there supervenes a notable change of things, which, if it had been foreseen, the promise would not have been made; because a promise made is always presumed under such a tacit condition" (III, 720). Cf. the things said n. 1060.

IT IS ASKED. Whether a promise obliges if before execution the promisee or the promisor DIES?

1. If the PROMISEE dies, it must be distinguished thus: the promise was made either principally in his favor, or principally or at least equally in favor of his family or heirs. If the former, the obligation of the promise vanishes, because the end intended in the promise ceases. If the latter, the obligation presses toward the family or heirs of the deceased (cf. n. 1068).

2. If the PROMISOR dies, the heirs are held to fulfill his real promise, whether toward the promisee or toward the latter's heirs, in the same mode and by the same title by which the deceased was held. But otherwise if it is established that the promisor wished to obligate only himself personally (Lugo, l. c., n. 98). The Codes also are to be consulted here: for example Austrian Code, 955.

Note. But if the promise was made through a mandatary, the promise will have force after the death of the promisor, so that the heirs of the deceased are obligated, provided the mandatary could not yet know of the death of the deceased (cf. Lehmkuhl, I, n. 1287).

With respect to the promise which an heir ab intestato made to a dying man, see n. 1083, fin.

871. • Promise is a contract by which someone freely and spontaneously obligates himself to furnish or omit something gratuitously in favor of another. The conditions required for the obligation of promise are:

1° That there be present the will of obligating oneself, at least virtual and implicit, which anyone is judged to have who seriously wills to promise, even if he does not advert to the obligation.

2° That the consent of the same promisor be fully free and spontaneous, and therefore that every error and fraud about the substance and final cause, and every unjust coercion or fear, be absent. Cf. n. 853, III.

3° That the promise itself be manifested outwardly and accepted; since every pact ought to consist in the mutual consent of two or several into the same object; and from elsewhere no one is judged to will to obligate himself toward someone unless that one accepts.

872. Questions. - Query 1° What and how great is the obligation of a promise once accepted?

Resp. It is controverted among Theologians. There is given a threefold probable opinion, according to St. Alphonsus.¹

The 1st Opinion holds that a promise, of itself, obligates only under venial sin and from mere fidelity. The reason is that a gratuitous contract obligates only by the bond of fidelity, and fidelity does not seem to obligate under mortal sin, if other inconveniences are absent.

The 2nd Opinion says that a serious promise in a grave matter obligates under grave sin from justice, independently of the intention of the promisor. The reason is that a gratuitous promise is not of a diverse order from an onerous promise by reason of obligation.

The 3rd Opinion, the more common and more probable, teaches that the obligation of a promise depends on the intention of the promisor. Whence, if he intends to obligate himself from justice, he is obligated under mortal sin in grave matter; but if he intends to obligate himself only from fidelity, he is obligated only under light sin. Moreover, for grave matter in a promise they require a quantity fourfold greater than in mortal theft.

But it is certain that a promise by accident obligates from justice if one's neighbor suffers damage from the promise not observed, and that under grave or light sin according to the measure of the quantity of the damage. For example, I promised to give you a loan for consumption, which you gravely need, and you, trusting me, did not provide for yourself from elsewhere; or I took care that my son be educated, because you promised me the expenses, which afterward you refuse.¹

And these things indeed concern promise properly taken. For more often promises, such as are commonly made, obligate neither from justice nor from fidelity, because the one promising does not intend to obligate his faith strictly, but merely to announce his purpose.

873. • Query 2° What in doubt, whether someone wished to obligate himself under grave or under light sin according to the patrons of the third opinion?

Resp. More probably one must stand for the minimal part, because in doubt a certain burden is not to be imposed, especially in a promise, which requires the greatest spontaneity.² Except, as above, a promise seriously made and accepted in a grave matter, which by accident can obligate under grave sin from justice; as if there intervened the reason of grave damage coming to one's neighbor from the promise not observed (n. 872, § But it is certain).

Query 3° Can someone accept a promise through another?

Resp. Affirmatively. Someone can accept a promise through anyone chosen for that, or through a familiar, because he is judged to constitute morally one person with him. He can also accept a promise through another who conducts his care, for example, a father for a son of the family, a Religious for a monastery, a Prelate for his Church, a wife for her husband.

Query 4° When does the force of an accepted promise cease?

Resp. 1° If the promisee spontaneously condones, or cedes from his right. - 2° If the thing promised becomes illicit or useless. But if it was prodigal, it will obligate to observing what is not prodigal; but in an indivisible thing nothing is owed.¹ - 3° If the promisee does not stand by his own promises. - 4° If the state of things or persons is so changed that the promise does not seem to comprehend that event. - 5° If the cause which moved to promising in no way subsists.

874. • Query 5° Whether, or how far, does a promise obligate, if before execution the promisee or the promisor dies?

Resp. to the 1st. Distinguish. It obligates in no way if the promise was made principally in favor of the promisee; because, he being dead, the end intended in the promise ceases; but otherwise, if the promise was made chiefly with regard to the family of the promisee, or his heirs.

Resp. to the 2nd. When the promisor has died, a promise clothed with the due conditions is to be fulfilled by his heirs, because every real obligation ought to pass to heirs in the same manner and by the same title by which the promisor was obligated. Therefore the heirs will be held under grave or under light sin, from justice or fidelity, just as the promisor was held while he lived. Yet they will be able to be freed from every obligation if from the circumstances of the thing, or from signs, it is manifest that the promisor wished to obligate only himself personally. - Lugo, Reuter, etc.

Resolutions. - 1° Those things which are promised by a master to servants, beyond the annual stipend, as to be given at some time or left in the manner of a legacy, are often mere purposes. But if they are promises, they are made either only from gratitude, for example, for service faithfully furnished, or from justice, say, because of undue industry or work. If the master, before the promise is fulfilled, dies unexpectedly, in the former case it will not be licit to carry off the thing promised by occult compensation, since a strict right does not arise from fidelity; but it will be licit in the latter case, because in this case a strict right is born from the promise.¹ Besides, in this case the promise is deservedly judged a remunerative donation, which imports the payment of a debt rather than a gratuitous cession (n. 876).

2° One subscribing to a formula by which money is requested for erecting a church or some pious work signifies, according to the tenor of the formula, either a purpose, or a promise of giving, or a donation afterward to be executed. One not paying the money, in the first case, of himself sins in no way; in the second, venially; in the third, gravely. For the internal forum, the obligation is to be determined from the declaration of the penitent concerning the sense in which he understood or intended it, for example, merely courteously.²

Note. - A promise by our law is a naked contract (n. 828, 5°); but it is clothed if it rests on a consideration estimable by price. (y) p. 476.

477. Promise is presupposed to all other contracts, and is included in all; yet it can be standing by itself, and then it is a simple promise. This is defined: a liberal, deliberate, and spontaneous obligation of faith made to another and accepted, concerning a licit and possible thing to be furnished in favor of another. It is said:

1. liberal, so that it may be distinguished from a mutual and onerous promise which can enter a bilateral and onerous contract, by which namely someone promises and obliges himself to furnish something, if the other undertakes an obligation or burden;

2. deliberate and spontaneous, i.e., perfectly immune from every error, deceit, fear, and force, as befits a gratuitous contract which ought to proceed from mere liberality and accordingly requires full liberty; although this ought not to be verified under the same title in a mutual onerous promise;

3. obligation: thus it is distinguished from a mere intention, which does not include a new obligation toward another; whence he who does not keep an intention without reason is guilty of inconstancy toward himself, but offends neither fidelity nor justice toward another;

4. of faith: thus it is distinguished from donation, which is not the giving of faith but of a thing, in which the thing itself is given, whereas in promise faith is given and an obligation is undertaken of furnishing the thing in the future. Namely, donation gives a right in a thing; not so promise, which at most grants a right to a thing;

5. made to another and accepted by him: namely, it is necessary that the promise be externally manifested and accepted by the promisee; otherwise there would not be a consent of several wills into the same thing, nor a contract. For some sort of right to my obligation cannot arise in another unless the other wills it; whence acceptance is required, which must be made by an external deed, even tacitly if the promise is made to one present and silent, in which case acceptance is presumed;

6. concerning a licit and possible thing...; otherwise the promise would be invalid.

Therefore three conditions are required for promise: 1) the mind of obligating oneself, 2) deliberate and spontaneous will, 3) manifestation of the will and acceptance by the other.

478. Obligation of promise.

1. A gratuitous and unilateral promise of itself seems to oblige only from fidelity, by which man in association with others ought to conform deeds to words; St. Thomas saying, II-II, q. 88, a. 3, ad 1: "according to honesty (which is a moral debt, not a legal one), from any promise man is obligated to man"; nevertheless per accidens it can oblige from justice, if there accedes to it an intention of obligating oneself from strict debt, in which case in the other there arises a true right to the thing. For since a contract is a particular law which the one promising freely imposes upon himself, he can also impose upon himself an obligation from justice. In this case, not in the former, it is a true contract.

2. A bilateral and onerous promise, made under the condition that the other undertake an obligation or sustain a burden for obtaining the thing promised, of itself obliges from justice, and therefore under grave matter from its genus: for it is a perfect or onerous contract. For an onerous obligation mutually undertaken between equals is connaturally of justice, and is wont to be so understood and assumed. Yet it does not seem altogether impossible that two should exceptionally intend to oblige themselves only from fidelity; but this is not to be presumed, but must be proved.

3. An obligation of mere fidelity, even in grave matter, is of itself light; per accidens a grave obligation of justice can accede, by reason of damage that will follow from violation of the promise, for example, if someone promises to give a loan and the promisee therefore does not provide for himself from elsewhere, or if a physician has promised to help a sick man and this man, relying on such a promise, has called no other physician, or if a brother has promised his brother to pay half the expenses for the education of a nephew if he enters college, or if someone has not kept a promised secret: but then the obligation does not arise from contract, but from this, that someone does not remove a voluntary cause of damage.

4. An obligation of justice, when it is had, is grave from its genus; yet for mortal sin a greater quantity is required than in theft. St. Alphonsus after others establishes matter four times greater than that which is required for grave theft relatively to the promisee. This is consonant with reason, because he has only a right to the thing, not in the thing, and a right toward a person who promises altogether gratuitously.

479. The obligation of promise ceases:

1. if the promisee renounces his right or spontaneously condones;

2. if the handing over of the promised thing becomes impossible, or illicit, or useless or damaging to the promisee;

3. if a notable change of circumstances supervenes or becomes known, such that prudently someone would not be judged to have willed to oblige himself for such an event: for an act does not oblige beyond the intention of the one promising;

4. in the case of a mutual promise: if the other has not stood by his promises, because faith is not to be kept with one breaking faith.

If the promisee dies before execution, the one promising is held to nothing, unless it is certain that the promise was made solely or principally with a view to the family of the promisee or his heirs. - If the one promising dies, a personal promise does not pass to the heirs, but is extinguished; a real one passes, unless from the circumstances it is manifest that the one promising willed to oblige only himself personally.

480. Practical observations. - 1. Simple promises, as they are more often made among men, oblige from mere fidelity and not from justice. Those promising sufficiently rarely understand themselves to be obliged from justice. Therefore, unless the contrary is certain, it must be judged that the obligation is not from justice.

2. Indeed those things which according to the external form seem promises, often are nothing but intentions, because the word to promise, in the intention of the one pronouncing it, does not always signify an obligation.

3. An obligation of justice is present when the one promising intends to transfer a true right, and the promisee believes that a right has thereby been acquired by him. This can be certain not only from the express declaration of the one promising, but also from various circumstances, as if he has obliged himself as much as he can, with an oath added, or by a written bond or another written instrument, before witnesses called for this, or before a notary with solemnity, or from common estimation.

4. On account of a promise it is not licit to compensate oneself secretly, unless it is certain that it is not a mere intention but a true promise, and indeed one obliging from justice. This can happen if it was made because of unusual services furnished, in which case a title of wage intervenes (an implicit contract). But even then the mere intention of giving expressed is not to be confused with a true promise; and the sentence of a judge in this question would have force of itself.

I say. Given the conditions of a true promise, there arises an obligation of fulfilling it. The reason is that a promise is a true contract, and it is impossible for there to be a contract without some obligation. Moreover, the conditions of a true promise are: 1st, that there be the intention of binding one's faith, and not merely of stating a purpose; 2nd, that the consent of the one promising be fully free and spontaneous; 3rd, that the promise itself be outwardly manifested and accepted, because every contract requires mutual consent of two or more persons upon the same object.

You Will Resolve. - 1st. It is certain that a true promise imports some obligation, but theologians dispute much concerning its quantity. But the more common and more probable opinion teaches that it depends upon the intention of the one promising. Wherefore if he intends to oblige himself from justice, he is obliged under mortal sin in grave matter; but if he intends only to oblige himself from fidelity, he is obliged only under light sin. Moreover, for grave matter in a promise, the Doctors require a quantity four times greater than in grave theft. - Cf. St. Alphonsus, n. 720.

2nd. In doubt, whether there was a true promise or a simple purpose, or whether someone wished to oblige himself under grave sin or rather under light sin, one must stand by the least part according to the rules of probabilism. - Indeed Kenrick says: "English law, which also obtains in these regions, attributes no force to a promise made by word only or altogether gratuitous, that is, one which rests on no equitable cause, either work furnished, or nearness of family, or another grave reason." - Cf. St. Alphonsus, n. 720. - Kenrick, n. 22.

Question 1. When does the force of an accepted promise cease?

Resp. It ceases: 1st, if the promisee spontaneously condones or yields from his right; 2nd, if the thing promised becomes illicit or useless; 3rd, if the promisee does not stand by his promises; 4th, if the state of things or persons is so changed that the promise does not seem to comprehend that event; 5th, if the end which moved to promising in no way subsists, and can no longer be obtained. - Cf. St. Alphonsus, ibid.

Question 2. Whether, or to what extent, a promise obliges if before execution the promisee or the promisor dies?

Resp. In the case of the death of the promisee, the promise in no way obliges if it was made principally for the favor of the promisee, because with him dead, the end intended in the promise ceases; but otherwise if it was made chiefly in view of the family of the promisee or of his heirs. But in the case of the death of the promisor, the promise clothed with due conditions must be fulfilled by his heirs; because every real obligation must pass to the heirs in the same way and under the same title by which the promisor was obliged. Therefore under grave or under light sin, from justice or fidelity, the heirs will be held just as the promisor was held while he was living. Nevertheless they will be able to be freed from every obligation if from the adjuncts it is manifest that the promisor wished only to oblige himself personally.

XII. QUESTION IX. What is a promise, and what is its obligation? ANSWER. It is the free and spontaneous giving of one's word concerning a thing lawful and possible. For there is required for a true promise an obligation of furnishing, out of the virtue of fidelity, that which is promised; nor does the mere will of doing suffice; and therefore it is called a giving of one's word. It is called free and spontaneous, because a promise is a gratuitous contract.

AFTER dominion has been acquired, the first species of contracting is Promise, which indeed lays an obligation on one part; it suffers, however, before acceptance, a free faculty of revoking. One is external: another internal. One simple, another also solemn; Promises are also sometimes made for a shameful cause: how all these stand, is to be settled here in a few words.

PROMISE and Donation are AFFINES. Promise is a firm, and spontaneous giving of faith concerning a licit thing; or it is a deliberate, and spontaneous obligation of faith, of giving, or doing something, given to another concerning a licit, and good thing, pleasing to him. So the Doctors commonly. See Sotum lib. 7. de iustitia, quaest. 2. art. 1. Fagundez lib. 3. cap. 1. de contract. and the holy Doctor indicates it in 4. dist. 29. quaest. 2. and dist. 38. dub. 5. littera.

DONATION indeed is an exhibition, not of faith, but of a thing; yet to give signifies actual tradition, from D. Bonavent. in primo, dist. 18. quaest. 4.

POLLICITATIO signifies a promise on the part of the offerer only, just as a promise is on the part of both; yet they are often taken for the same thing, as you have in D. Bonaventura in 4. dist. 27. dub. 5. littera, and also donation signifies respect to the donor, and to him to whom the donation is made, as D. Bonavent. notes in primo, dist. 18. quaest. 5. Donation indeed by that very fact transfers a determinate thing from the donor to the donee, so that the thing may be called his, mine, or yours, as the holy Doctor admonishes dist. 18. citata, quaest. ultima.

DONATION indeed signifies the liberal exhibition of a gratuitous thing, as the holy Doctor teaches in the cited places, and in 2. dist. 7. part. 2. quaest. 1. ad septimum.

THEREFORE, being about to treat of the contracts one by one, I treat of Promise, which is the principle of all, and of the liberal exhibition, which is first made from promise, and which obligates the spontaneous exhibitor, just as also a promise in the internal forum indeed, if the intention of binding oneself was present; but if it has the intention not of promising, and yet promises externally, it is compelled in the external forum to fulfil, as D. Bonavent. teaches in 4. dist. 38. dub. 5. litt. and in other cited places disp. 1. quaest. 3. and commonly Sanchez lib. 1. de sponsal. disp. 5. num. 21. Caietanus, and other Thomists 2. 2. quaest. 88. art. 3. where Aragon Rebell. de oblig. iustitiae, 2. part. lib. 18. quaest. 1. Corduba sum. quaest. 156. Fagundez lib. 3. de contract. cap. 1. So also the cited quaest. and quaest. 2. disp. 1. I have shown that a promise ought to be spontaneous, but not extorted by force, fear, or fraud, lest he who extorted it carry off gain from fraud, or force, as the holy Doctor argues in the places lately cited, and with him D. Thom. 2. 2. quaest. 89. art. 7. where Caietanus, and other disciples. Sotus lib. 8. de iust. quaest. 1. art. 7. ad 3. Mercatus cap. 16. Nauar. summa, cap. 18. Molina tract. 2. disp. 267. Sylvester V. restit. Lopez 2. part. Instruct. cap. 30. Rebell. 2. part. lib. 18. quaest. 1. num. 7. Fagundez lib. 3. cap. 1.

WHENCE Fagundez infers, num. 5. Azor Tomo 1. lib. 11. cap. 7. §. tertia regula, with D. Bonavent. in speculo animae, cap. 2. and all suppose, especially the holy Doctor, in the places cited above, that he who receives what was promised, extorted by force, or fear, is bound in conscience to restore it, because he receives it unjustly.

IT IS MOST CERTAIN that breaking a promise accidentally is against justice: consider the cases in which the promiser, trusting in his promise, does not provide for himself from elsewhere, and a grave loss befalls him. See Sanchez lib. 1. de matrim. disp. 5.

There is therefore a controversy: whether an obligation of justice arises from a promise of itself.

The FIRST opinion is that of the authors who hold it to be an obligation from justice. So Sanchez lib. 1. de matrim. disp. 5. num. 20. Lessius Tom. 1. lib. 2. dub. 8. num. 55. Navarr. sum. lat. cap. 18. num. 6. Sotus lib. 7. de iustitia quaest. 2. art. 1. Covarr. in cap. quamvis pactum, part. 2. §. 4. num. 24. Angel. V. pactum, Sylvester ibi, quaest. 4. et V. Lex, quaest. 10. Rich. 4. dist. 38. quaest. 3. and others cited by Sanchez loco cit. et Dianam Parte 1. Tract. 3. miscell. resol. 9. Tannetus, however, disp. 4. quaest. 1. num. 62. holds that one is bound as it were from justice. Bassaeus, V. Promissio, is more severe.

The OPPOSITE opinion holds that it is an obligation only of fidelity. So Sotus in 4. dist. 20. quaest. 1. art. 2. Suarez de aux. disp. 2. sect. 2. Molina tract. 2. de iust. disp. 262. Azor tract. 1. lib. 11. cap. 5. Thom. 2. 2. quaest. 88. art. 1. Cajetan ibi, Fagundez lib. 3. de contract. cap. 2. Lessius num. 54. calls it probable. Firmus verbo perfidia, Leddesma Tom. 1. tract. 10. cap. 3. Fernandez in suo examine, p. p. cap. 15. §. 8. Diana loco cit. indeed hold that it does not bind gravely. This is the opinion of St. Bonaventure locis citandis.

I ASSERT, with this opinion, that a simple promise given and accepted binds only from fidelity.

It is PROVED by St. Bonaventure in 2. dist. 17. art. 2. quaest. 2. in corpore, et ad 1. with the argument used by Molina and Fagundez, because a simple promise is a free and purely liberal giving of one's faith, and proceeds from mere liberality, and hence does not confer a right of justice, unless the promiser intended expressly to bind himself to that by liberality — which is not to be believed to be intended. It is confirmed by Suarez, because a simple promise does not include by its nature any actual donation, but a pure and mere obligation of faith to give something in the future; yet this does not transfer a right in a thing, since nothing is given. It is confirmed by St. Bonaventure ibi, because a liberal promise depends on the will of the promiser, who can refuse to bind himself to justice, but only to give his faith.

You will SAY: A promise accepted passes into a pact of two, from which a civil obligation arises, which also passes to the heirs Leg. si quis argentum, §. ult. Cod. de donat. et cap. 1. de pactis.

It is ANSWERED that this happens in the external forum, if it is established by an instrument that he wished to bind himself, because since the obligation of the promiser is established, the laws presume that he wished it from justice, since his intention is not established, as St. Bonaventure warns in 4. dist. 27. art. 2. quaest. 2. ad ultimum; it is otherwise in the forum of conscience. It is proved by the Saintly Doctor also locis adductis, P. P. Tract. 1. disp. 19. quaest. 1.

I ADD, however, that this sin against fidelity is mortal, at least in the gravest matter, supposing that it binds only from fidelity, as many Doctors say cited by Fagundez; most consider such matter four times greater than the matter of theft, cited by Bassaeus.

I SUPPOSE that a promise made merely internally to God, or to the Saints, binds, as all confess with St. Bonaventure in 4. dist. 38.

AS TO our question, which is indeed about the forum of conscience alone.

The FIRST opinion holds that it binds. So Sanchez lib. 1. de matrim. disp. 3. who calls it probable. Aragon 2. 2. quaest. 88. art. 3. Angles in flor. part. 2. quaest. 1. de voto, art. 2. diff. 4. Leddesma 2. 4. quaest. 18. art. 1. where, however, he is problematic, indeed at length inclines to the contrary.

Hence Diana deduces that such a person is bound to reveal and fulfill his promise, and consequently that the one to whom the promise was made, if he knows it and owes something to the promiser, which he cannot obtain in judgment, can make himself a secret compensation. The same think Mendoza lib. 1. de pactis, cap. 1. Palacius de contract. lib. 5. cap. 12. Sanctarellus var. resol. p. p. quaest. 66. num. 49.

The SECOND opinion denies that a merely internal promise binds. So D. Thom. 2. 2. quaest. 88. art. 1. et in 4. dist. 38. quaest. 1. art. 1. quaest. 2. Tanner. disp. 4. quaest. 1. dub. 5. num. 59. Basil. Poncias de matrim. lib. 2. cap. 6. num. 9. Panormit. in cap. litteraturam, de voto, num. 2. Turrecrem. in cap. 1. 17. quaest. 1. §. 12. Abul. ad cap. 5. Levit. quaest. 4. et ad cap. 30. Numer. quaest. 44. Rosella V. votum 1. Tabiena ibi §. 4. and Clarius V. dispensatio, Molina Tom. 2. de iustitia, disp. 266. Lessius lib. 2. cap. 18. dub. 5. num. 28. Rebeilius 2. part. lib. 18. quaest. 1. Fagundez lib. 3. de contract. cap. 1. num. 4. Bassaeus V Promissio, num. 5.

This is the opinion of D. Bonaventura 4. dist. 29. quaest. 2. ad 2.

It is Proved by the Saintly Doctor with the argument used by Fagundez. The obligation of one man to another must be proportioned to a human manner; for man communicates with man only through external expressions, whence it comes about that the obligation of one to another cannot be made without the concurrence of the will of both; but while the promise is internal, it is indeed unknown to the promisee, but is a mere volition of one party, not accepted by the other, and hence cannot be a binding donation. So also others argue.

You will say l. 3. §. manumittenda, ff. de acquir. possess. possession can be lost by mere intention.

Fagundez answers num. 8. more is required for acquiring a right than for losing it.

The other things which the adversaries heap up only prove that an internal promise is required as the foundation of a human obligation, but they do not show that it suffices.

Nor do they prove that the act of conscience compels one to manifest that internal act, because from the beginning it was imperfect, and therefore essentially invalid as to its being.

You will say that with an oath added, you are bound to stand to him in conscience, as also by a vow.

Fagundez answers num. 6. ex D. Bonav. 4. dist. 28. dub. 2. that this happens from another title, reverence toward God, to which even an internal promise, and attestation, if made in a competent manner, is fitting, and therefore valid.

I ASSERT with D. Bonaventura in 4. dist. 29. q. 2. ad 2. that a promise made externally, even if express, before it is accepted does not bind by any right, and can be revoked. Sotus lib. 3. de iustitia, q. 5. art. 3. follows, Tiraquellus ad leg. si unquam, Cod. de revoc. donat. v. libertis, num 54. Molina de primog. lib. 4. cap. 2. n. 62. Covarr. in c. Quamvis pactum, 2. part. §. 4 n. 15. Gomez tract. 2. var. cap. 9. Panormit. in c. Cum inter universas, de elect. Felinus in c. 1. de pactis, a n. 7. Fagundez lib. 3. de contract. c. 4. Less. lib. 2. c. 18. dub. 6. n. 35. et 38. Molina Tract. 2. de iust. disp. 263. Tanner. disp. 4. q. 1. n. 58. and others generally, with Bass. eo. v. Promissio, num. 5.

It is clear by the argument of St. Bonaventure, because an obligation of one to another is not contracted unless the will and consent of both concur.

It is next Proved by Caesarean law leg. 1. ff. de pollicitat. leg. 3. ff. eadem, leg. 2. §. sed si quis, et leg. obsenti, ff. ae donat.

By Canonical law Covarruvas, Felinus, and Panormitanus, cited above, prove it.

By Natural law the same is proved by Covarruvas, Gomez, Molina, Lessius above, Bartol. ad leg. si unus ex familia, §. pactum, ff. de pactis.

Whence they deduce, with St. Bonaventure, that it is licit to withdraw from betrothals thus promised.

Many make an exception for promises for pious causes: they prove it, because in lege 1. ff. de pollicit. the donation made to a city for restoring its ruins is excepted.

Others, however, deny that these are excepted, according to leg. Hoc iure, §. si quis dederit, ff. de donat. et leg. 3. ff. de servis exposit. et leg. 1. Cod. si mancipium.

Others make an exception for donations made to an infant, by the argument of leg. Iubemus, Cod. de emancipat. liberorum. So Decius consil. 245. Molina de primog. lib. 4. cap. 2. num. 76. but Fagundez num 8. does not dare to adduce that law, which speaks only of emancipated persons.

It is truly DOUBTFUL: whether a promise made to one present and silent is valid, because in favorable cases he who is silent seems to consent.

So affirm Iulius Clar. §. donatio, quaest. 14. Molina de primog. lib. 4. cap. 2. Fagundez num. 12. Cruz in directotio conscientiae, p. prima, pract. 7. art. 1. disp. 1. Diana Tract. 5. miscell. resol. 116. Covarr. in rubr. de testam. part. 3. num. 13. ex leg. qui patitur, ff. mandati.

When Caius, a missionary priest, had recently been transferred to another parish, his former parishioners wished to make a gift as a testimony of their grateful spirit. Titius, one of them, attended a meeting of the parishioners at which this was determined, and, moved after hearing the praises of Caius, promised that he would give five pounds sterling. On the next day, however, because the merits of Caius did not seem so great and the sum of money promised appeared large, Titius changed his mind and determined to give nothing. But because his conscience was not at rest, he disclosed the whole matter in his next confession to Julius, who had succeeded Caius. When questioned by Julius, Titius asserted that he had had no intention of binding himself in justice; hence the confessor began to doubt whether he was constrained under sin by any strict obligation—indeed, not under grave sin because it was not from justice, nor under light sin because, as he said, a light obligation has no proportion with grave matter. Before he gives Titius an answer, Julius asks:

1. What is a promise, and what kind of obligation does it introduce?

2. How does the obligation of a promise cease?

3. Does Julius rightly apply his principles?

4. What is to be said of the case?

1. What is a promise and what sort of obligation does it impose? A promise is a unilateral and gratuitous contract by which one person binds himself to do something for another. The quality of the obligation which a simple promise imposes depends on the intention of the promisor. If he intends to give the promisee a strict right to what he promised, the obligation to fulfil the promise is one of justice; otherwise it will be one of fidelity.¹

1 Manual of Moral Theology, vol. i, p. 496.

2. How does the obligation of a promise cease?

In general a simple promise will cease to bind if some event takes place or becomes known subsequently which would have prevented the promisor from making the promise if it had been known beforehand. A fortiori it will cease to bind if the thing promised become impossible, wrong, or useless, or if anything happen which would suffice to discharge even a bilateral and onerous contract.

3. Does Julius apply his principles correctly?

No; he does not. The doctrine which he applies to this case has reference to the question whether there is an obligation to make restitution when grave harm has been caused by slight negligence. In that case many theologians hold that there is no obligation to make restitution because the unjust act was not perfectly voluntary, and because restitution in such a case has the nature of a penalty, and a grave penalty should not be inflicted for a slight fault. In our case the question concerns the obligation of fidelity which binds under venial sin in great as in small matters.²

2 St. Alphonsus, book iii, no. 552; Lugo, De Justitia, disputation viii, no. 58.

4. The case. Titius has no solid reason for not keeping to his promise, which was made seriously after deliberation about the matter, as we must suppose. He will therefore be bound at least under pain of venial sin to give the five pounds which he promised.³

3 Lugo, De Justitia, disputation xxiii, no. 89.

SOME of the commentators on the new Code of Canon Law are in grave difficulties over the right interpretation of Canon 1017. It is laid down in that Canon that no other engagements to marry are valid but those that are in writing signed by the parties themselves and by the parish priest or the local Ordinary or two witnesses. The Canon, furthermore, provides that there lies no action in the ecclesiastical courts for breach of promise of marriage, even when the contract was expressed in writing, duly signed, and there was no good reason for breaking it off. All that is conceded to the aggrieved party is an action for damages if there were any. The difficulty is further increased by an answer to a question proposed to the Pontifical Commission for the interpretation of the Code. The case was put of a man who was going to marry a third party although he had been previously engaged to another girl, and it was asked whether, if this girl brought an action against him for damages, the celebration of marriage with the third party would be suspended till the issue of the trial was determined. The answer was that no action lay for the investigation of the question whether the breach of promise was justified or not, and that the celebration of the marriage with the third party would not be suspended by the trial of the action for damages.

The law of the Church as thus stated gives rise to some practical difficulties. Let us suppose that a parish priest is asked to publish the banns of marriage between two of his parishioners, A and B. On the banns being published a girl, C, comes to the parish priest and shows a written engagement to marry duly signed by A and herself and two witnesses. Let us suppose that the parish priest knows all the circumstances of the case out of confession and that A has no good reason for violating his engagement with C. Nevertheless, he must tell C that she has no remedy, that she may claim damages if she likes, but that such a claim cannot suspend or delay the marriage of A and B. The contract between A and C was valid, and produced a grave obligation in justice to fulfil it, nor has A any good reason for violating it. If A goes to confession to the parish priest the parish priest must refuse him absolution, for he is guilty of a grave sin and is unrepentant. But outside the confessional he is obliged to publish the banns of marriage between A and B, nor can the celebration of the marriage be deferred in consequence of the just complaints of C. Is not the Church bound to uphold the moral law and protect the rights of the innocent ?

If it is put in that way the difficulty can be made to look formidable enough. But we must look at the question from other points of view.

Perfect liberty of marriage is a matter of great importance for the public good. A marriage into which one of the parties has been forced can scarcely turn out well. No one should be forced to marry against his will. The laws of many modern states refuse to grant actions at law for breach of promise of marriage. The Church’s legislation in this matter is apparently suggested by the similar laws of those modern states. For motives concerning the public good the Church refuses to force anyone to marry against his will. She is justified in doing that, even though occasionally the rights of individuals are not vindicated in consequence. Private advantage must yield to the demands of the public welfare. When the engagement was entered into the provisions of the law were known, the parties knew that the law granted no redress for any failure to fulfil the contract, and the contract was made with that knowledge in the minds of both parties to it. They cannot, then, complain that an injustice is done them by the law when it merely denies a right of action to enforce the contract. To refuse to help a party to protect his rights is not to deny or abrogate his rights. Public authorities are not bound to protect all the rights of their subjects.

English law refuses to grant an action at law for the recovery of a debt barred by lapse of time. The law does not extinguish the debt when six years have elapsed from the time when payment became due. It regards the debt as still owing. It will support the action of a creditor who appropriates to the payment of a debt barred by lapse of time an unappropriated payment made by the debtor. An executor creditor may pay himself a debt barred by lapse of time, and the law will uphold him. So that laws which deny an action for the protection of a right do not of themselves take away the right, they leave it where they found it; it remains a right of natural obligation. They are not unjust laws if they are enacted on account of grave reasons connected with the public welfare. If, according to the laws of the Church, two parties are free to marry, their parish priest is bound to assist at their marriage; no option is given him. He may know that one or both of the parties are in a state of sin and unrepentant, and therefore unfit to receive absolution. He will do what he can to put them in better dispositions, but if he does not succeed in his endeavour he must nevertheless assist at the marriage. Otherwise he would not do his duty as parish priest and authoritative witness of the marriage on behalf of the Church.

I think that these considerations explain and justify Canon 1017, and show that there is no real conflict between the parish priest’s duties as a confessor and as the Church’s witness of marriage.